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Total Institutions and the Possibility of Consent to Organic Therapies

Certain contemporary forms of organic therapy used in an attempt to correct or control deviance strike terror into the hearts of traditional liberals and humanists. Psychosurgery, particularly, has experienced a resurgence of popularity, and its use has been advocated on impulsively violent persons and on so-called “hyperkinetic” children. It is useful to begin a discussion of organic therapies with the absolutely clear paradigmatic case of psychosurgery, and this is an extremely useful example upon which to build a discussion of organic therapies in general. It was the primary focus of Kaimowitz v. Department of Mental Health, which held that psychosurgery could not legally be performed on involuntarily confined inmates of prisons or mental hospitals because such inmates are incapable of giving informed, competent, and voluntary consent to such procedures. This case illustrates the enormous practical importance of analyzing the concepts of informed, competent and voluntary consent, and the enormous moral and legal mischief that can be done when these concepts are used in a casual and ill-considered way. This article examines this case, concentrates on how the concepts of competent consent, informed consent, and voluntary consent should be analyzed, and considers whether it is even possible for such consent, with respect to psychosurgery and other organic therapies, can possibly be given by involuntarily confined inmates of social institutions.